VII. memorials which escaped the destructive policy of BOOK Edward I. Yet if a few hiftorical records have perished, an impure and enormous mafs of judicial proceedings does not deferve regret '. 1661. The first confideration, when the parliament Prerogative proceeded to public bufinefs, was to reftore and reftored. affert the prerogative to its full extent. The chancellor was received as official prefident; the nomination of judges, counsellors, and officers of ftate, was declared a branch of the divine prerogative, inherent in kings. The command of the militia, the power of declaring war, the right to fummon or diffolve conventions, parliaments, and public affemblies, were acknowledged to refide in the crown alone, and as the happiness of the people confifts in maintaining the prerogative entire, to oppose or impugn the authority of the act was converted into treafon. Illegal convocations, leagues, and bonds, were feverely prohibited. The covenant was indirectly repealed, by an act to prevent its renewal without the king's confent. His fupremacy was indirectly established by an oath of allegiance, that the fovereign was fupreme governor in all cafes, over all perfons, ecclefiaftical and civil ; and although the chancellor protefted that no authority was implied in communion or in difcipline, the prefbyterians demanded in vain, that the explanation, fupreme civil governor, fhould be inferted in the oath. An ample recognition of the prerogative was required from perfons in public office; 5 Woodrow, i. 18. Burnet, i. 157. Ayloff's Calendars of Charters, p. 354 VII. 1661. BOOK but the oath of allegiance was impofed indiscrimi» nately, as a fruitful fource of perfecution, on all perfons, at the pleasure of the council, under the penalty of incapacitation from public truft. Instead of the monthly affeffments exacted by Cromwell, an excife of forty thousand pounds a-year was con ferred on the king for life, to preferve the public tranquillity by a military force. To reftore the prerogative of which the crown had been defpoiled, was perhaps unexceptionable; but in thefe acts, the late proceedings of the nation was indifcriminately condemned, and the prerogative was magnified by rhetorical flourishes, to the most exalted defpotifm. Former parliaments refcinded from the beginning of the civil wars. The commiffioner had been felected as exempt from fcruples, and although his natural violence was heightened by intemperance", an obfequious parliament was prepared to yield to his moft extravagant demands. The lords of articles became impatient and tired of particular reverfals. But there were two parliaments whofe acts it was difficult, yet neceffary to repeal, in order to abfolve the king from his promise to preferve the established church. His father had prefided in the one, and himself in the other. The presbyterian church was confirmed by the acts of both; the repeal of which might 6 Parl. 1661, ch. 5. 7. 11, 12. 14. 34. 7 Middleton was of a good family in the North, but of no eftate; and rofe from a pikeman in Hepburn's regiment in France. Kirkton, MS. His father was murdered, fitting in his chair, by Montrofe's foldiers, when they overrun the country in 1645. Woodrow. VII. 1661. excite a fpirit of remonftrance, fufficient to deter BOOK the king from the introduction of prelates. A general refciffory act was fuggefted, to annul the parliaments themfelves, from the year one thoufand fix hundred and thirty-three, as injurious to thẹ prerogative, or defective in form; and a proposal made in jeft, was adopted in earneft, from the feverifh intoxication of Middleton and his friends. The constraint under which the crown was fupposed to labour, had no place in the parliament held in one thousand fix hundred and forty-one, when the late king attended, and ratified its acts from choice; the parliament in one thoufand fix hundred and forty-eight was chofen and directed by his particular inftructions, to confirm the engagement. But the commiffioner maintained that the former had been held in the interval between two rebellions, when the neceffity of affairs, without any personal violence, had impofed a real constraint on the king; while the latter, to conciliate the fanatics, had entered into the engagement on fuch hypocritical terms, that its whole proceedings deferved to be condemned. Notwithstanding a vigorous oppofition from Crawford, Caffils, Loudon, and the old covenanters, the act was approved by a large majority, and ratified without expecting inftructions from court. The covenants, and the laws that established prefbytery, were virtually repealed; and with fome improper limitations on prerogative, every conftitutional barrier was thus removed. But the act was more pernicious ftill, as a precedent destructive of all security in govern ment, VII. 1661. BOOK ment, and of all confidence between the people and the king. The laws were open, they affirmed, if defective, to amendment and review; but if one parliament, under the pretext of fear, or the neceffity of public affairs, can refcind another, the first principles of government are fubverted. A future legislature may annul the present, on the fame pretext that the prefent abrogates thofe whofe public treaties and indemnities, which are ever to be reputed facred, were confirmed by the crown". Exceffes of the times. Trial of Argyle. These times are described by Burnet as mad and riotous; full of extravagance, for the men engaged in public affairs were almoft perpetually drunk. The most important and violent acts, that reversed the former conftitution and government, are explained by the conftant intoxication of ministers; and the commiffioner often appeared fo drunk on the throne, that the parliament was adjourned. The moft licentious intemperance and excefs of debauchery were termed loyalty, gravity, fedition; and the trial and attainder of delinquents, was perhaps the only fubject that engroffed the ferious or fober confideration of the estates. When the king was reftored, on the promise of an amnefty to his English subjects, no indemnity was promised or proposed for Scotland; and it was deemed expedient that the nation fhould ftill remain at the mercy of the crown. Argyle, encouraged by fome equivocal expreffions of Charles, * Parl. 1661, ch. 15. Burner, i. 168. Baillie, ii. 451. had VII. 1661. Feb. 13: had repaired privately to court, but the royalifts BOOK who grafped at his poffeffions, were apprehenfive of a crafty, infinuating statesman, whofe former credit with the king might revive. On demanding admittance to the royal prefence, he was committed to the Tower, and accused of a fecret acceffion to the murder of the late king. His trial was remitted to Scotland, where he was produced and arraigned in parliament on feparate indictments of oppreffion and treafon. The feverities inflicted on the royalifts during the civil wars, the cruelties retaliated in the adherents of Montrofe, were accumulated in his indictments. He was accufed as the author of every national act from the commencement of the wars; as an acceffory to the furrender and execution of the king; and an actor under the late ufurpation, in oppofition to those who appeared for the crown. His defence was His devigorous and plaufible at least, if not always juft. He affirmed that the atrocities imputed to his clan were partly fictitious, partly exaggerated "; committed during his abfence in England, from the violence of the times; and that a cruel revenge was to be expected from his people, whose country had been twice wafted with fire, and devoted to 10 We may judge of the extravagance of the charge, and the fanaticifm of the accufers themselves, from a fact afferted in his first indictment; that a tree on which thirty-fix of his ene mies were hanged, was immediately blafted, and when hewn down, a miraculous and copious ftream of a bloody hue, with which the earth was deeply faturated, was emitted for feveral years from the root. State Trials, ii. 422. the fene |